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State v. Winegardner

Court of Appeals of Arizona, Second Division

May 31, 2017

The State of Arizona, Appellee,
v.
Darren Lee Winegardner, Appellant.

         Appeal from the Superior Court in Pima County No. CR20144179001 The Honorable Howard Fell, Judge Pro Tempore

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee

          Joel Feinman, Pima County Public Defender By Erin K. Sutherland, Assistant Public Defender, Tucson Counsel for Appellant

          Presiding Judge Staring authored the opinion of the Court, in which Judge Miller and Judge Espinosa concurred.

          OPINION

          STARING, Presiding Judge.

         ¶1 Darren Winegardner appeals his conviction for sexual conduct with his minor stepdaughter, contending the trial court erred by precluding him from impeaching the victim with evidence of her prior misdemeanor shoplifting conviction. Because we conclude the trial court did not err, we affirm Winegardner's conviction and sentence.

         Factual and Procedural Background

         ¶2 We view the evidence in the light most favorable to sustaining Winegardner's conviction. State v. Foshay, 239 Ariz. 271, ¶ 2, 370 P.3d 618, 620 (App. 2016). One night in October 2012, Winegardner argued with his wife, Rachel, whose fifteen-year-old daughter, L.B., was present in the home. Rachel left the house, taking L.B.'s younger siblings with her. L.B., however, stayed behind with Winegardner.

         ¶3 After Rachel had left, Winegardner and L.B. began drinking, and she became intoxicated. Winegardner told L.B. it was "really common for stepdads and daughters to engage in sexual activities, " and asked if she wanted to have sex with him. They then engaged in intercourse.

         ¶4 The next day, after L.B. told her mother what had occurred, Rachel contacted the police, who had L.B. taken to the Child Advocacy Center (CAC), where she underwent a forensic interview and a medical examination. The examining physician obtained swabs for a DNA[1] analysis, and an external genital swab subsequently revealed sperm matching Winegardner's DNA profile.

         ¶5 The state indicted Winegardner on one count of sexual conduct with a minor. He was convicted after a jury trial, and the trial court sentenced him to a mitigated term of 3.5 years' imprisonment. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21 (A)(1), 13-4031, and 13-4033.

         Discussion

         ¶6 Prior to L.B.'s trial testimony, Winegardner informed the trial court he intended to impeach her with a 2015 shoplifting conviction[2] because it was a "crime of moral turpitude." The court precluded him from doing so. After her direct examination, he again sought to introduce evidence of the prior conviction, and, again, the court refused.

         ¶7 Winegardner challenges the trial court's preclusion rulings on two bases: Rule 609, Ariz. R. Evid., required the court to permit evidence of the prior conviction because shoplifting involves "deceit or false presentation"; and the court's refusal to allow impeachment with the conviction violated his rights to due process and confrontation. "When reviewing a ruling on the admissibility of prior convictions, this court will overturn the trial court's determination only if it proves to have been a clear abuse of discretion." State v. Green,200 Ariz. 496, ¶ 7, 29 P.3d 271, 273 (2001). "An error of law constitutes an abuse of discretion." State v. ...


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